There are two stages at which a bill can be resisted: at the taxation itself, and on review by a Judge.
Rule 51
(1) The taxing officer may (a) arrange and direct what parties should attend before him on any taxation; and (b) disallow the costs of attendance of any party whose attendance he considers unnecessary.
(2) Notwithstanding Sub-rule (1), any party interested may attend any taxation.
— National Court Rules 1983, Order 22
Rule 41: where a party has had due notice of the time appointed, or notice has been dispensed with under Rule 39, the taxing officer may proceed in his absence. And Rule 48(3): where either party does not appear, the Court may order the Registrar to proceed with the taxation.
Failing to attend does not preserve any argument. It forfeits the chance to make it.
Notice comes under Rule 48(1): the Registrar fixes a time and place and notifies the applicant, the solicitor concerned, and every other interested party.
The objections available
- The basis of taxation. Party and party is the default under Rule 24(1). On that basis only costs necessary or proper for the attainment of justice or for enforcing or defending the rights of the party are allowed — see party and party costs.
- Whether the work was necessary or proper — item by item.
- The amount claimed against the scale in Table 1 of Schedule 2 under Rule 36.
- Formal defects in the bill under Rule 49 — columns not separated or not cast, a clerk not named where relevant, an unpaid disbursement not marked as unpaid, or no endorsement. See the bill of costs.
Second counsel. Rule 26: the fees of a second lawyer or overseas counsel may be allowed on taxation only if, and to the extent that, they are certified for by the trial Judge. Without the certificate they are not allowable at all.
Unpaid disbursements. Rule 49(4)(c): a disbursement or counsel’s fee shall not be allowed unless paid before the taxation is completed — subject only to the narrow Matrimonial Causes exception in sub-rule (5).
Rule 56(2): if one-sixth or more of the amount of the bill … is taxed off, the solicitor whose bill it is shall not be allowed the fees … for preparing the bill and for attending the taxation.
So a party who succeeds substantially at a taxation also strips out the cost of the taxation itself.
Rule 60
(1) Any party to any taxation proceedings who is dissatisfied with the allowance or disallowance in whole or in part of any item by the taxing officer, or with the amount allowed … in respect of any item, may apply on motion to a Judge to review the decision in respect of that item.
(2) The application shall be made within 14 days after the date of the decision objected to or within such further time as the Court may allow.
(3) Every applicant for review … must at the time of making his application deliver to the taxing officer objections in writing specifying the list of items to which the applicant objects and must state concisely the nature and grounds of each objection.
(4) The applicant shall serve a copy of the objections on each other party (if any) who attended the taxation of those items and any other person the taxing officer directs.
They must be delivered at the time of making the application — not afterwards. They must specify the list of items, and state concisely the nature and grounds of each objection.
That is because of Rule 61(1)(b): on the review, unless the Court for good reason otherwise directs, a party shall not raise any ground of objection not stated in the statement of objections delivered to the taxing officer.
A ground omitted from the written objections is, in the ordinary case, lost.
Rule 61
(1) On the review, unless the Court for good reason otherwise directs —
(a) no further evidence shall be received; and
(b) a party shall not raise any ground of objection not stated in the statement of objections delivered to the taxing officer.
(2) Subject to sub-rule (1), on the review the Court may exercise all such powers and discretions as are vested in the taxing officer in relation to the subject matter of the application.
Rule 59(4)
Where the taxing officer decides to allow or disallow, wholly or in part, any item in a bill or to allow some amount in respect of any item, he shall not, except with the consent of the parties interested, make a certificate dealing finally with that item, until the expiry of 14 days after the date of the decision.
That period matches the 14 days for review in Rule 60(2). Consenting to an earlier certificate gives up the opportunity.
Note Rule 59(7): the taxing officer may make a separate or interim certificate in respect of any item … notwithstanding an application for review under Rule 60 to his decision on any other item — so undisputed items need not wait.
Rule 62: where the amount of any costs has been certified … the Court may, on motion by a party, direct the entry of such judgement for the costs as the nature of the case requires.
And under Rule 9(2), where proceedings were dismissed with costs or a motion refused with costs, a party may enter judgment if the costs are not paid within four days after the signing of a certificate of taxation. Enforcement then runs under Order 13.
Rule 59(2): where, on taxing a solicitor’s bill to his own client, it appears that in any event the solicitor will be liable … to pay money to the client, the taxing officer may make an interim certificate specifying that amount — and under sub-rule (6) the Court may order it to be paid to the client or into Court.
Sources
- National Court Rules 1983 — O 13; O 22 rr 9, 24, 26, 36, 39, 41, 48, 49, 51, 56, 59–62, Sch 2 Table 1
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.